Breitberg v. State

District Court of Appeal of Florida

Breitberg v. State

855 So. 2d 265, 2003 Fla. App. LEXIS 14803, 2003 WL 22239319

District Court of Appeal of Florida·Decided October 1, 2003·No. No. 4D01-2464·Published

Opinion

PER CURIAM.

Murray Breitberg was charged with five counts of capital sexual battery, and one count of indecent assault. He was found guilty as charged on all six counts after a jury trial. We find Breitberg’s first two issues on appeal unpersuasive and therefore affirm his conviction. However, as both parties concede, Breitberg’s fifteen-year sentence on Count VI, indecent assault, was an improper departure sentence without written reason. “The facts supporting the departure must be ... explained in writing by the trial judge.” State v. Baksh, 758 So.2d 1222, 1224 (Fla. 4th DCA 2000); See § 921.0016(1)(c), Fla. Stat. (2003). Since it appears unclear from the record whether the trial court was aware of the imposition of a departure [266] sentence, we reverse and remand with instructions for reconsideration of whether the departure sentence is appropriate, and if so, to enter written reasons consistent with a departure sentence.

STONE, POLEN and HAZOURI, JJ., concur.

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PER CURIAM.

Murray Breitberg was charged with five counts of capital sexual battery, and one count of indecent assault. He was found guilty as charged on all six counts after a jury trial. We find Breitberg’s first two issues on appeal unpersuasive and therefore affirm his conviction. However, as both parties concede, Breitberg’s fifteen-year sentence on Count VI, indecent assault, was an improper departure sentence without written reason. “The facts supporting the departure must be ... explained in writing by the trial judge.” State v. Baksh, 758 So.2d 1222, 1224 (Fla. 4th DCA 2000); See § 921.0016(1)(c), Fla. Stat. (2003). Since it appears unclear from the record whether the trial court was aware of the imposition of a departure [266] sentence, we reverse and remand with instructions for reconsideration of whether the departure sentence is appropriate, and if so, to enter written reasons consistent with a departure sentence.

STONE, POLEN and HAZOURI, JJ., concur.

Breitberg v. State, 855 So. 2d 265, 2003 Fla. App. LEXIS 14803, 2003 WL 22239319 (Fla. Ct. App. 2003).

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